Kerala High Court
State Of Kerala vs Jomon on 9 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:1013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 9TH DAY OF JANUARY 2025 / 19TH POUSHA, 1946
DSR NO. 1 OF 2019
AGAINST THE JUDGMENT DATED 16.01.2019 IN SC NO.177 OF
2012 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II,
THODUPUZHA
PETITIONER/COMPLAINANT:
STATE OF KERALA
(REPRESENTED BY PUBLIC PROSECUTOR)
SMT.AMBIA DEVI, SPECIAL PUBLIC PROSECUTOR
RESPONDENT/ACCUSED:
JOMON
S/O. THAMPI, PERUVELIL PARAMBIL (H),
57TH MILE KARA, PEERMADE VILLAGE.
BY ADVS.
SRI.M.REVIKRISHNAN
SMT.MITHA SUDHINDRAN
SRI.RIJI RAJENDRAN
SMT.POOJA PANKAJ
SMT.AATHMA SUDHIR KUMAR-COUNSEL FOR PROJECT 39
SMT.SAKSHI JAIN-COUNSEL FOR PROJECT 39
THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY
HEARD ON 17.12.2024, ALONG WITH CRL.A.415/2019, THE COURT
ON 09.01.2025 DELIVERED THE FOLLOWING:
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
-: 2 :-
2025:KER:1013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 9TH DAY OF JANUARY 2025 / 19TH POUSHA, 1946
CRL.A NO. 415 OF 2019
AGAINST THE JUDGMENT DATED 16.01.2019 IN SC NO.177 OF
2012 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II,
THODUPUZHA
APPELLANT/ACCUSED:
JOMON,
AGED 38 YEARS, S/O.THAMPI,
PERUVELIL PARAMBIL (H), 57TH MILEKARA,
PEERMADE VILLAGE, IDUKKI-685531.
BY ADVS.
P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.RIJI RAJENDRAN
SMT.MITHA SUDHINDRAN
SMT.POOJA PANKAJ
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
SMT.AMBIA DEVI, SPECIAL PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.12.2024, ALONG WITH DSR.1/2019, THE COURT ON
09.01.2025 DELIVERED THE FOLLOWING:
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
-: 3 :-
2025:KER:1013
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
D.S.R.No.1 of 2019
&
Crl.Appeal No.415 of 2019
-----------------------------------------------
Dated this the 9th day of January, 2025
JUDGMENT
P.B.Suresh Kumar, J.
The above Death Sentence Reference (DSR) and the
Criminal Appeal arise from S.C.No.177 of 2012 on the files of
the Court of the Additional Sessions Judge-II, Thodupuzha.
There were two accused in the crime from which the above
Sessions Case arose. Since the presence of the second accused
could not be secured for trial, the first accused was tried and
convicted for offences punishable under Sections 302, 376 and
449 of the Indian Penal Code (IPC). Later when the presence of
the second accused was secured, he was also tried, convicted
and sentenced to death for the aforesaid offences. The criminal
appeal is instituted by the second accused challenging his
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
conviction and sentence in the case and the DSR is the
proceedings initiated for confirmation of the death sentence of
the appellant in terms of Section 366(1) of the Code of Criminal
Procedure (the Code).
2. The crime which is the subject matter of the
case is one in which a young lady and her widowed mother
were horrifically murdered after the accused allegedly took
turns in raping them. The victims were residing with the infant
of the daughter victim in their family house situated in a large
extent of property. Their immediate family namely, the brother
and husband of the daughter victim were away in their place of
employment at the time of the occurrence. At about 05.30 p.m.
on 03.12.2007, a neighbour of the victims namely, Sheeja
noticed while coming back from work that the infant of the
daughter victim was left unattended to at the courtyard of the
house of the victims, despite continuous crying. Since Sheeja
did not find anybody in the house of the victims then, she took
the infant to her house and informed the matter to her mother.
Ponnamma, the mother of Sheeja went to the house of the
victims forthwith accompanied by some of her neighbours,
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
after informing the local police. One of the neighbours,
Prakashan who peered inside the house, saw the dead bodies
of the victims, one lying on a cot and the other on the floor, in
one of the rooms of the house. A crime was registered
immediately thereupon by Vandiperiyar Police based on the
information furnished by Ponnamma. The investigation in the
case revealed that it was the accused who committed the
murder of the victims after committing rape on them by taking
turns. A final report was accordingly filed in the case.
3. For clarity, both the accused are collectively
referred to hereinafter as the accused and individually referred
to as the first accused and the appellant respectively. Similarly,
for clarity, the elder victim is referred to as the mother victim
and the younger victim is referred to as the daughter victim.
4. The accusation against the accused as in the
final report is that in furtherance of their common intention to
commit rape and murder the victims, at about 10 p.m. on
02.12.2007, the accused trespassed into the property of the
victims, broke open the door of their house, made the daughter
victim unconscious by tying her neck with a towel and
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
thereafter the first accused committed rape on her and the
second accused committed rape on the mother victim. It is
also the accusation in the case that later, the first accused
committed rape on the mother victim and the appellant
committed rape on the daughter victim. It is also the
accusation in the case that in the meanwhile, when the
daughter victim regained consciousness and attempted to
prevent the accused from committing rape on her, they beat
the victims repeatedly on their heads with a chopper and an
iron rod and in addition, the first accused caused also internal
injuries to the victims by striking them on their chests with his
knee. It is alleged that the victims succumbed to the injuries
caused by the accused.
5. As noted, when the appellant was committed
to trial, the Court of Session framed charges against him for
the offences punishable under Sections 449, 376 and 302 read
with Section 34 of the Indian Penal Code (IPC), to which the
appellant pleaded not guilty. The prosecution, thereupon,
examined the witnesses on their side as PWs 1 to 26 and
proved through them Exts.P1 to P34 documents. MOs 1 to 21
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
are the material objects identified by the witnesses. Ext.D1 is
the wound certificate of the appellant produced by the
prosecution, but marked at the instance of the appellant. After
closing the evidence, when the circumstances appearing
against the accused in the evidence were put to the appellant,
he denied the same. The appellant has also filed an additional
statement taking the stand that the first accused left the
company of the appellant on the afternoon of 02.12.2007
itself; that on 06.12.2007, the police caused the appellant to
hold on two empty bottles; that he did not hand over any
articles to the police and that the evidence produced against
him are all false and fabricated. The relevant part of the
additional statement reads thus:
"02.12.2007 ത യത ഞ യറ ഴ xxx xxx ഉചഭകണ എന വ ട ൽ കഴ ച ട അന ദ വസ ഉചകഴ ഞ
ഏകനദശ 2.30 മണ നയ ന" ര ന$നൻ എന വടൽ ന അയ ളന" അമയന" അന$ത 57 -൦
മമല ൽ ത മസ ക നറ സയന" വ ട നലക ന1 കകയ നണന 1റഞ ബ ക മദ7മ"ങ യ
നബ ട ലമ യ ന1 യ . 1 " ഞ ൻ " ര ന$നനന ക ണ ത 05.12.2007 ത യത ര ത
വണ ന=ര യ ർ ന1 ല സ ന?ഷന ൽ വച ണ. എന 05.12.2007 ത യത ര ത ഏകനദശ 10.30
മണ നയ ന" എന വടൽ വ വണ ന=ര യ ർ SI നA ദ7 നAയ ന നണ 1റഞ വണ ന=ര യ ർ
ന1 ല സ ന?ഷന നലക കട നക ണന1 യ അവ ന" വച എന ന1 ല സക ർ കനറ മർദ ച 57 -൦
മമല ലണ യ രണന1രുന" മരണത ൽ എന ക 1ങണ എ സമത കണ എ അവർ 1റഞ.
1നക ഞ ൻ നAയ ത ക ര7മ യത ന ൽ സമത ച ല. 6.12.2007 ത യത എന നക ണ രണ
ക ല യ യ മദ7ക= കള ല രണ 1 ലകകഷണങള ല ന ർബന ച എന മകനക ണ 1 " = ച, ക" നത
കനറ ക"ല സകള ല ഇനതല നAയ ചത സർക ൽ ഇൻസന1കർ ആണ . ഞ ൻ ന1 ല സ ൽ ഒരു
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
കറസമതനമ ഴ യ നൽക യ ട ല. ഞ ൻ ഒരു നത ണ സ ധനവ എടത ന1 ല സ ന ഹ $ര ക
നക ടത ട ല. എന നകത നര ഹ $ര ക യ ര ക നത ണ വസകള അത നന "നബന ച ടള നരഖകള
ന1 ല സ കത7മമ യ എന നകത നര കളനതള വ ഉണ ക യ ടളത ണ. 1 ആ പത ര ന$നൻ ഈ
നകസ ൽ ഉൾന=ട ട ഉനണങ ൽ അത ന ഞ ൻ ഒര കല ഉതരവ ദ യല. ഞ ൻ ഈ നകസ ൽ ത ർത
ന ര1ര ധ യ ണ."
As the court did not find the case to be one fit for acquittal
under Section 232 of the Code, the appellant was called upon
to enter on his defence. The appellant, however, chose not to
adduce any evidence. Thereupon, on an evaluation of the
matters before it, the Court of Session found that the appellant
trespassed into the house of the victims along with the first
accused and murdered them after ravishing them, in
furtherance of the common intention shared by them and
thereby committed the offences punishable under Sections
449, 376 an 302 read with Section 34 IPC. Consequent on the
finding, the appellant was convicted for the said offences and
sentenced, among others, to death for the offence punishable
under Section 302 IPC. The appellant is deeply aggrieved by
his conviction and sentence, hence this appeal.
6. Heard the learned Senior Counsel for the
appellant as also the learned Special Public Prosecutor.
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
7. The learned Senior Counsel for the appellant
made elaborate arguments. We are not referring to the
arguments here, as we propose to deal with the same
elaborately in the course of our discussion. Suffice it to say, the
essence of the arguments was that the prosecution has
miserably failed in proving the guilt of the appellant beyond
reasonable doubt. The learned Special Public Prosecutor
refuted each and every argument made by the learned Senior
Counsel and supported the impugned judgment, pointing out
that the evidence let in would establish beyond reasonable
doubt, the charges levelled against the appellant. The learned
Special Public Prosecutor has also asserted that the sentence
of death awarded to the appellant is warranted on the proved
facts.
8. In the light of the submissions made by the
learned counsel for the parties, the point that falls for
consideration is whether the conviction of the appellant for the
offences punishable under Sections 449, 376 and 302 IPC and
the sentences passed against him, are sustainable in law.
9. In order to consider the point, it is necessary to
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
scrutinise the relevant evidence. PW1 is Ponnamma who
lodged Ext.P1 First Information Statement. PW1 affirmed the
said fact in her evidence. PW5 is Sheeja, the daughter of PW1.
PW5 deposed that at about 05.30 p.m. on 03.12.2007, while
returning from work, she noticed that the infant of the
daughter victim was left unattended to, despite continuous
crying and she informed the matter to PW1, after taking the
child to their house. PW3 is the husband of the daughter
victim. In cross-examination, it was stated by PW3 that in the
evening on the day prior to the date of occurrence, the
daughter victim went out to sell pepper. PW23 is the brother of
the daughter victim. PW23 deposed that he reached home in
the early morning hours on 04.12.2007. According to PW23,
when he saw the body of his sister, the clothes worn by her
then were seen pulled up to her waist.
10. PW6 is a lady who knew the accused. The
evidence of PW6 was that by about 8.15 p.m. on 02.12.2007,
while returning from the place, 'Periyar', she went to the shop
of one Amalraj near her house for tea. It was her evidence that
while going back home after tea, she saw the accused on the
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
street when she flashed her torch and that when she
proceeded thereupon to her house, she felt that she was being
followed. It was her version that having noticed that she was
being followed, she immediately entered inside her house and
closed the door. It was deposed by PW6 that she then heard
the sound of footsteps in her courtyard and when she enquired
"ആര ആര ", there was no response. It was also deposed by PW6
that she then ran to the shop of Amalraj through the back door
of her house and informed him about the footsteps in the
courtyard of her house and sat in his shop until 11 p.m. and
that thereafter, the wife of Amalraj dropped her back to her
house. In cross-examination, it was clarified by PW6 that on
reaching her house, she changed her clothes, cleaned the
traditional lamp and it was while taking rest thereafter that she
heard footsteps outside her house. When PW6 was asked in
cross-examination as to whether she saw the accused in the
courtyard of her house, she answered in the negative. Further,
it was clarified by PW6 in cross-examination that she resides
very close to the bus stop as also the shop of Amalraj and that
the appellant is also a person residing close to the shop of
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
Amalraj. In re-examination, it was stated by PW6 that it was
unnecessary for the appellant to pass by her house in order to
reach his own house.
11. PW7 is an auto driver. PW7 is a person who
knew the appellant. PW7 deposed that at about 8 p.m. on
02.12.2007, the appellant and another person hired his auto
and that he dropped them near a granite quarry; that the said
persons were drunk at the relevant time and that the appellant
was wearing then a green checkered shirt. In cross-
examination, when it was put to PW7 that he does not appear
to have stated to the police about the colour of the shirt the
appellant was wearing while travelling in the auto, PW7
asserted that he made such a statement to the police.
12. PW9 is Amalraj referred to by PW6. As noted,
he is the person who runs a shop near the house of PW6. PW9
deposed that at about 12.15 p.m. on 02.12.2007, he saw the
appellant alighting from the bus " ശരണണ" near his shop; that
when the first accused came to the shop after sometime, the
appellant frisked around the waist of the first accused requiring
the latter to disclose to him as to whether he was carrying
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
liquor and that on finding a liquor bottle in the waist of the first
accused, the appellant requested PW9 for two glasses as also
water and when PW9 gave the same to him, the appellant and
the first accused consumed that liquor in his shop. It was
deposed by PW9 that after sometime, the wife and children of
the appellant came there and required the appellant to come
home for lunch and the appellant then required the first
accused also to come to his house for lunch and all of them,
thereupon went to the house of the appellant. It was deposed
by PW9 that at about 8.45 p.m. on that day, PW6 came to his
shop for tea and while PW6 was returning to her house, he saw
the accused who were sitting on the culvert near his shop then,
following PW6. It was deposed by PW9 that by about 9.30 p.m.
on the same day, PW6 came to his shop again and informed
him that somebody threw a stone at her house. It was deposed
by PW9 that after sometime, the wife of PW9 dropped PW6 to
her house. In cross-examination, when PW9 was asked as to
whether he gave a statement to the police that " ന$ നമ ന
ര ന$നന അവരുന" വട നലക ഊണ കഴ ക ൻ ന1 യനശഷ ഞ ൻ ഊണകഴ ഞ തമഴ
ന ട നലയ ന1 യ . 1 " നA വ ഴ ഇ നല ര വനല ആണ വ ത അന= ഴ ണ xxx വ
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
അവരുന" അമയ വട ൽ മര ച ക "ക ത അറ ഞ", PW9 affirmed that he
gave such a statement and then clarified voluntarily that he
went to Tamil Nadu only on the night of 02.12.2007. When it
was put to PW9 that he does not appear to have stated to the
police that he went to Tamil Nadu only in the night on that day,
PW9 asserted that he made such a statement to the police.
Similarly, when it was put to PW9 that he does not appear to
have stated to the police that while PW6 was returning to her
house from his shop, the accused were sitting on the culvert
near his shop and then followed PW6, it was asserted by PW9
that he made such a statement as well. Similarly, when it was
put to PW9 that he does not appear to have stated to the
police that PW6 came back to his shop again on the same day
at about 9.30 p.m. and informed him that somebody threw a
stone at her house, he asserted that he made such a
statement.
13. PW18 was the doctor who conducted
postmortem examination on the body of the mother victim and
issued Ext.P21 postmortem certificate. The following were the
ante-mortem injuries noted by PW18 on her body at the time
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
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of postmortem examination:
"1. Chop wound on front of head 7.5 x 2 cm
transverse, 6cm above root of nose. The inner, right end, 2
cm right to midline, bone deep.
2. Chop wound on top of head on right side 6.5cm
transverse, 2.5cm back to right end of injury No.1 bone deep.
3. Chop wound on right parietal region 4 x 1.5cm bone
deep.
4. Chop wound on top of head 5x1cm front to back
direction, bone deep front end and 2cm behind injury No.1.
5. Chop wound on left side of top of head 6x1cm bone
deep, transverse, 4cm back to injury No.4. Scalp contusion on
frontal region and right temporal region over an area of 15 x
15cm. Depressed comminuted fracture of frontal, parietal and
right temporal bone over an area of 13x6cm transverse. The
under surface of left temporo occipital region showed a
contusion 4.5x2.5x0.5cm. Subdural and subarachnoid
haemorrhages seen on both cerebral and cerebellar
hemispheres. The brain congested and moderate flattening of
gyri noticed.
6. Contusion front of chest on mid region 15x10cm
transverse with fracture of sternum at 4th rib region, with
fracture of right 3rd, 4th, 5th and 6th ribs along mid clavicular
line."
The opinion of PW18 as to the cause of death of the mother
victim was that death was due to chop wounds sustained to
the head. It was also opined by PW18 that Injuries 1 to 5
sustained by the mother victim could be caused with a chopper
and Injury 6 could be caused by forceful stamping. PW20 was
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
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the doctor who conducted the postmortem examination on the
daughter victim and issued Ext.P26 postmortem certificate.
The following were the ante-mortem injuries noted by PW20 on
her body at the time of post-mortem examination :
"1. Incised wound 3.2x0.5x0.5cm obliquely placed on
the left side of top of head and forehead, with its lower inner
end 3.2cm outer to midline and 5cm above eyebrow.
2. Incised wound 3x1x0.5cm obliquely placed on the
left side of head with its lower outer end 4cm above top of
ear. Underneath temporalis muscle was contused.
3. Contusion 14x9x0.8cm on the back of head and neck
just behind the root of ear. The upper extend at the level of
top of ear.
4. Incised wound 5x1x0.5cm obliquely placed on the
back of head across the midline the upper right end 3cm
above occiput and 1cm outer to midline.
5. Incised wound 3x0.5x0.5cm obliquely placed on the
left side of head, its upper outer end 3cm outer to midline and
4cm above occiput.
6. Incised wound 3.5x1cm, bone deep, obliquely placed
on the left side of forehead and eyebrow, with its upper inner
end 2.5cm outer to midline and 0.5cm above eyebrow.
Underneath the frontal bone was seen fractured and
fragmented. The fracture was seen extending backwards as
fissured fracture for a length of 14cm through the anterior,
middle and posterior cranial fossae on the left side.
Brain showed flattening of gyri, narrowing of sulci,
iffuse subdural, subarachnoid and intraventricular
haemorrhages.
7. Multiple small abrasions over an area 5x3cm on the
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right side of face 2cm outer end 1cm below right angle of
mouth.
8. Multiple abrasions over an area 8x4cm on the front
of neck in the middle 8.5cm behind chin.
9. Pressure abrasions 19cm long, obliquely placed on
the front and sides of neck, being 5cm below mastoid process
(0.3cm broad), 4cm below right ear (0.3cm broad), 5.5cm
behind chin (0.3cm broad) and 9cm below left ear (0.3cm
broad).
Flap dissection of the neck was done in a bloodless
field. Subcutaneous tissue was normal. The sternomastoid
muscle, sternohyoid muscle and sternothyroid muscle of left
side were contused. Haemorrhages seen inside the larynx.
Other muscles, bones, cartilages and vessels of the neck were
seen intact and normal.
10. Contused abrasion 5.5x3cm on the right side of
chest 5cm outer to midline and just below collar bone.
11. Multiple contusions of sizes 0.5x0.3cm to 6x3cm
muscle deep over an area 19x17cm on the front of chest,
more towards left side, the right extend was 6cm outer to
midline and 7.5cm below collar bone. II to VI ribs on both sides
were fractured just outer to costochondral junction. The
sternum was seen fractured between the 3 rd and IVth pieces.
Contusion 10x5x1cm seen on the front of pericardium. Heart
showed contusions (1) 1x0.5x0.5cm on the front aspect of
inter ventricular septum and (2) 2x1x1cm at the apex. Lungs
showed contusion 7x2x1cm each at the back aspect near
hilum. Chest cavities contained 200 ml fluid blood in each.
12. Contusion 5x3x1.5cm on the front of abdomen
13cm above pubic symphysis, mesentry showed contusions
(1) 5x3x0.3cm and (2) 5x4x0.3cm with superficial laceration
at 50cm and 70cm away from ileocacoal junction respectively.
Laceration 5x2x1.5cm seen on the under aspect of left lob of
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
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liver. Abdominal cavity contained 500ml fluid blood.
13. Abrasion 0.8x0.5cm on the back of right knee at its
lower part.
14. Contusion 3x2x0.5cm on the back of left wrist.
15. Contusion 4x2x0.5cm on the back of left index
finger just below its root."
The opinion of PW20 as to the cause of death was that death
was due to injuries 1 to 6, 8, 9, 11 and 12. It was also opined
by PW20 that Injuries 1, 2 and 4 to 6 could be caused with MO7
chopper and Injury 3 could be caused with MO1 iron pipe and
Injuries 8 and 9 could be caused by applying force with a
towel. Similarly, it was deposed by PW20 that Injuries 11 and
12 could be caused by kicking and stamping. In cross-
examination, it was clarified by PW20 that no external or
internal injury was noted at vaginal portion.
14. PW19 was the Sub Inspector of Police who
arrested the appellant at 4 p.m. on 06.12.2007 and handed
over custody to the investigating officer. PW19 deposed that
fact in his evidence. PW26, the police photographer deposed
that it was he who took photographs of the chance fingerprints
lifted and specimen fingerprints collected in the case. It was
clarified by PW26 that the photographs of one of the chance
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
fingerprints was taken from a plastic bottle.
15. PW24 was the police officer who conducted
the substantial part of the investigation in the case. It was
deposed by PW24 that during interrogation, after the arrest of
the appellant, he disclosed to him that he has kept a chopper
on the boundary wall of the house of one Nassar at the place
called "Anpathezhamile" and when the appellant was taken to
that place as guided by him, he took out from there MO7
chopper and the same was seized by PW24 as per Ext.P8
mahazar. Ext.P8(a) is the disclosure which led to the recovery
of MO7 chopper. Likewise, it was also deposed by PW24 that
the appellant also disclosed during interrogation that he has
kept in his house the clothes that were worn by him on
02.12.2007 and when he was taken to his house, he took out
from there MO8 pants and MO9 shirt and the same were seized
by PW24 as per Ext.P9 mahazar. Ext.P9(a) is the disclosure
which led to the recovery of the said MOs. It was also deposed
by PW24 that he took the fingerprints of the accused and
forwarded the same for comparison with the fingerprints
collected from the scene of occurrence. In cross-examination, it
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
was conceded by PW24 that item 20 in Ext.P28 property list
namely, an empty liquor bottle was not produced before the
Jurisdictional Magistrate on 06.12.2007 along with the property
list and other articles mentioned therein. According to PW24,
item 20 which was seized from the house of the victims, was
withheld from production before the Jurisdictional Magistrate
for the purpose of taking its photographs. It was asserted by
PW24 that the said article was later produced before the
Jurisdictional Magistrate on 08.12.2007. It was also stated by
PW24 that the appellant was arrested before 08.12.2007.
16. As regards the previous statements of the
witnesses, it was clarified by PW24 that PW7, the auto driver,
did not inform him that the appellant was wearing a green shirt
while travelling in his auto. Likewise, it was clarified by PW24
that PW9, the shop owner, did not inform him that he left for
Tamil Nadu only on the night of 02.12.2007. Similarly, it was
clarified by PW24 that he was not informed by PW9 that PW6
came to his shop for tea at about 8.45 p.m. on 02.12.2007;
that when PW6 left his shop, the accused were sitting on the
culvert near his shop and that he saw the accused following
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2025:KER:1013
PW6. It was also clarified by PW24 that PW9 did not inform him
that PW6 came to his shop again on that day at about 9.30
p.m. and that he was also not informed by PW9 that somebody
threw a stone at her house.
17. PW15, the fingerprint expert attached to the
District Finger Print Bureau, Idukki, deposed that he inspected
the scene of occurrence on 04.12.2007 and collected two
chance fingerprints, of which one was not comparable and the
other, which was collected from the liquor bottle outside the
house matched with the interdigital area of the right palm of
the appellant. PW15 identified Exts.P12 and P13 as the
photographs of the chance and specimen prints. PW15 was
summoned again on a request made by the Public Prosecutor,
and when he was examined thereafter, he clarified that it was
from MO20 empty liquor bottle that one of the chance prints
was collected.
18. PW25 was the police officer who completed
the investigation in the case and submitted the final report. It
was PW25 who tendered formal proof of Ext.P34 report of the
Forensic Science Laboratory. Item 46 in Ext.P34 report is MO7
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chopper stated to have been recovered based on the
information furnished by the appellant. It is recited in the said
report that although MO7 chopper contained blood, its origin
could not be detected. Item 50 in Ext.P34 is MO8 pants stated
to have been recovered based on the information furnished by
the appellant. It is stated in the report that although MO8 pants
contained human semen, its origin could not be detected. Item
29 in Ext.P34 report is the folded piece of cellophane tape
containing the fibre collected from the door of the house of the
victims. It is stated in the report that item 29 cellophane tape
contained fibres similar to those in MO8 pants.
19. Let us now consider the point. In the absence
of any direct evidence, the prosecution attempted to prove its
case through circumstantial evidence. It is trite that the
following are the principles to be applied while considering the
guilt of the accused in cases involving circumstantial evidence:
(i) that the circumstances from which the
conclusion of guilt is drawn are fully established,
(ii) that the circumstances shall be of a conclusive
nature and tendency,
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2025:KER:1013
(iii) that the facts so established are consistent
only with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(iv) that they should exclude every possible
hypothesis except that the accused is guilty, and
(v) that there must be a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused
and must show that in all human probability, the act must
have been done by the accused.
In the light of the principles aforesaid, let us first determine the
circumstances which are proved in the case. As noted, the
circumstances shall be of a conclusive nature and tendency
and the same shall be fully established . The circumstances of a
'conclusive nature and tendency' means that they shall
unequivocally establish the truth of the facts, leaving no
reasonable doubt, or alternative explanation and they should
have a definite tendency of implicating the accused in the
crime.
20. Even though the doctors who conducted the
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postmortem examination on the bodies of the victims did not
give any opinion as regards the time of death of the victims,
we are of the view that in the light of the unchallenged
evidence of PW3 that on the day previous to the date on which
he came to know of the occurrence, the daughter victim went
out for selling pepper, it could certainly be inferred that the
deaths occurred after the daughter victim returned to her
house on the evening of 02.12.2007 and before 5.30 p.m. on
03.12.2007 when PW5, the neighbour, saw the infant of the
daughter victim left unattended to in the courtyard of the
house of the victims.
21. The learned Special Public Prosecutor
highlighted the evidence of PW23, brother of the daughter
victim, that when he saw the body of the daughter victim for
the first time, her clothes were seen pulled upto her waist, to
contend that it could be inferred from the said evidence that
the victims were subjected to rape by their assailants, before
causing their deaths. Even though we are in concurrence with
the argument that the positioning of a garment on a deceased
individual could be taken into account along with other factors
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2025:KER:1013
for the purpose of considering whether the person concerned
was subjected to rape, we do not think that from the
positioning of the dress alone, one could come to the definite
conclusion that the person concerned was subjected to rape
before she was murdered.
22. PW6 is a witness on whose evidence much
reliance was placed by the prosecution. Her evidence was that
by about 8.15 p.m. on 02.12.2007, she went to the shop of
PW9 for tea; that while going back home after tea, she saw the
accused on the street and when she proceeded thereupon to
her house, she felt as though she is being followed. It was also
her evidence that she immediately entered her house and
closed the door and that after some time, she heard the sound
of footsteps in her courtyard. It was also her evidence that she
then ran to the shop of PW9 through the back door of her
house and informed PW9 about the said sound. As noticed,
even though PW6 stated in her evidence that she saw the
accused on the street while returning to her house from the
shop of PW9, she was however, not categoric that it was the
accused who followed her. What could be inferred from her
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2025:KER:1013
evidence is only that she felt then that she was being followed.
We take this view also for the reason that since the area was
pitch dark then, PW6 could not have stated, after she passed
them, that it was the accused who followed her without looking
back at them and she had no case that she looked back at
them. In other words, the only inference that could be made
from the evidence of PW6 is that the accused were found near
the shop of PW9 at about 8.15 p.m. on 02.12.2007. Admittedly,
the appellant is a person who was residing close to the shop of
PW9 and there is nothing on record to indicate the proximity
between the place where PW6, PW9, the victims and the
appellant were residing. As such, the presence of the appellant
at that place cannot be taken as an incriminating circumstance
against him in a case of this nature. Of course, in re-
examination, the learned Public Prosecutor made an attempt to
bring on record that it was unnecessary for the appellant to be
at that place in order to go to his house. We do not think that
merely for the reason that the appellant was found at a place
deviating from the usual route to his house, the same can be
taken as an incriminating circumstance against him. Further, in
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2025:KER:1013
the absence of any evidence establishing the proximity
between the place where the accused were seen by PW6 and
the crime scene, the evidence tendered by PW6 is not of any
use to the prosecution.
23. Likewise, according to us, the evidence
tendered by PW7 is also not of any use to the prosecution. As
noticed, the evidence of PW7 is only that he dropped the
accused near the granite quarry in the locality and that both of
them were drunk at the relevant time. We do not find anything
incriminating in the said conduct of the accused who were
friends and going near the quarry at about 8 p.m., especially
when the first accused was a person who was working in that
quarry at the relevant time. It is all the more so since the
prosecution has no case that the house of the victims is in the
vicinity of the said quarry.
24. As in the case of PW6, PW9 is another witness
on whose evidence the prosecution places much reliance. As
noticed, PW9 is a person who is running a shop near the
houses of PW6 and the appellant. The appellant does not
dispute the fact that he consumed liquor with the first accused
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2025:KER:1013
at about 12.15 p.m. on 02.12.2007 in the shop of PW9 and that
thereafter, they went to his house for lunch together. The
evidence tendered by PW9 was that at 8.45 p.m., on that day,
PW6 came to his shop for tea and while she was returning to
her house, he saw the accused persons who were sitting then
on the culvert near his shop, following PW6 and that later, by
about 9.30 p.m. PW6 came to his shop again and informed him
that somebody threw a stone at her house. As noticed, when it
was put to PW9 that he does not appear to have stated to the
police that while PW6 was returning from his shop to her
house, the accused were sitting on the culvert and that they
followed her, it was asserted by PW9 that he made such a
statement. Similarly, when it was put to PW9 that he does not
appear to have stated to the police that PW6 came back to his
shop again on the same day at about 9.30 p.m., PW9 asserted
again that he made such a statement also. But, as noticed, the
investigating officer who was examined as PW24 clarified in his
evidence that the aforesaid assertions made by PW9 are false.
In other words, it is not safe to place reliance on that part of
the evidence tendered by PW9. Be that as it may, as already
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noticed, during cross-examination, when PW9 was asked as to
whether he gave a statement to the police that " ന$ നമ ന
ര ന$നന അവരുന" വട നലക ഊണ കഴ ക ൻ ന1 യനശഷ ഞ ൻ ഊണകഴ ഞ തമഴ
ന ട നലയ ന1 യ . 1 " നA വ ഴ ഇ നലര വനല ആണ വ ത അന= ഴ ണ xxx വ
അവരുന" അമയ വട ൽ മര ച ക "ക ത അറ ഞ ", he affirmed that he
gave such a statement. But, PW9 then added that he went to
Tamil Nadu only on the night of 02.12.2007. PW24 has clarified
in his evidence that PW9 did not state in his previous
statement recorded by him that he left for Tamil Nadu only on
the night of 02.12.2007.
25. It is seen that the evidence of PW9 contains two
parts, of which the former relates to the sequence of events
that took place at noon and the latter relates to the sequence
of events that took place post noon. As far as the sequence of
events that took place at noon is concerned, there is no
dispute. The dispute relates to the evidence tendered by PW9
as regards the sequence of events that took place post noon.
The question put to PW9 as extracted above assumes
importance in this context. As noted, PW9 has admitted in his
evidence that "ന$ നമ ന ര ന$നന അവരുന" വട നലക ഊണ കഴ ക ൻ
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
ന1 യനശഷ ഞ ൻ ഊണകഴ ഞ തമഴ ട നലക ന1 യ ". It is not disputed that
the evidence of PW9 as regards the time at which the accused
left his shop is the time at which they left to the house of the
appellant for lunch. In other words, the previous statement of
PW9 as admitted by him in cross-examination can only be
understood as that he left for Tamil Nadu after the accused left
for lunch to the house of the appellant. The same coupled with
the significant omissions in the previous statements of PW9
that he did not state to PW24 that while PW6 was returning
from his shop at about 8.45 p.m., the accused were sitting on
the culvert near his shop and that PW6 came back to his shop
again on the same day at about 9.30 p.m., we are compelled
to hold that it is not safe to place reliance on the evidence
tendered by PW9 as regards the sequence of events that took
place post noon on 02.12.2007.
26. As regards the evidence tendered by PW15
that one of the chance finger prints collected from MO20 liquor
bottle matched with the interdigital area of the right palm of
the appellant, the argument seriously pressed into service by
the learned Senior Counsel for the appellant is that the
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2025:KER:1013
evidence tendered by PW15 cannot be used against the
appellant for, the seizure of MO20 and its production before
the jurisdictional court, are all suspicious. It was pointed out
that MO20 was not an object collected from the scene of
occurrence namely, inside the house of the victims. On the
other hand, it is an object collected from outside the residential
building. That apart, it was pointed out that although MO20
was seized on 04.12.2007 at the time of holding inquests of
the bodies of the victims and although all the documents
seized along with the same were produced before the
jurisdictional court on 06.12.2007, MO20 was not produced
before the court along with other articles. It was submitted that
even though MO20 was seen produced before the court at a
later point of time, there is nothing on record to indicate the
exact date the same was produced before the court. It was also
pointed out that in the meanwhile, the appellant was arrested
at 4 p.m. on 06.12.2007. It was submitted by the learned
Senior Counsel that the specific case of the appellant at the
stage of recording the statement under Section 313 of the
Code, is that his palm impressions were taken in two bottles at
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2025:KER:1013
the time of his arrest. According to the learned Senior Counsel,
since MO20 was very much in the custody of the investigating
officer at the time of the arrest of the appellant, in the absence
of any satisfactory explanation as to the reason why the same
was withheld from being produced before court along with the
other articles seized on the same day, it is not safe to accept
the evidence tendered by PW15 as an incriminating
circumstance against the appellant.
27. There is no dispute to the fact that MO20 was
not seized from the scene of occurrence. It is admittedly, an
object that was collected from outside the house of the victims.
Merely on account of that reason, the appellant cannot be
heard to contend that the evidence tendered by PW15 cannot
be accepted as a circumstance against the appellant. But, as
noted, it has come out in evidence that while all the other
articles collected from the scene of occurrence as also from
outside the house of the victims at the time when the inquests
were held, were produced before the jurisdictional court on
06.12.2007, MO20 and two other articles were not produced
before the court. The explanation offered by the investigating
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2025:KER:1013
officer during his examination for the non-production of MO20
along with other articles on 06.12.2007 is that the same was
retained for the purpose of taking its photographs. The said
explanation, according to us, is not convincing. PW26 is the
photographer who took the photographs of the chance
fingerprints. PW26 was very much present at the place of
occurrence when the fingerprint expert lifted the chance
fingerprints. PW26 does not state, conspicuously, in his
evidence as to when he photographed the chance fingerprints
lifted by the fingerprint expert and as to when he handed over
the CD containing the photographs of the chance fingerprints
to the investigating officer. On the other hand, it was admitted
by PW26 in cross-examination that there is no document to
indicate as to when he handed over the CD to the investigating
officer. Even though PW26 did not depose as to when he took
the photographs of the chance fingerprints contained in MO20,
the sequence in which he gave evidence would indicate that
the chance fingerprints in MO20 were photographed at the
time of the seizure of the object itself, if not, immediately after
the seizure. At any rate, inasmuch as MO20 was seized on
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2025:KER:1013
04.12.2007, and all the documents produced along with the
said object were produced before the court on 06.12.2007, in
the absence of any impediments in photographing the chance
fingerprints till 06.12.2007 and in the absence of any
document evidencing the date on which the said object was
produced before the jurisdictional court, according to us, it may
not be safe to place reliance on the opinion of the fingerprint
expert for, we cannot rule out the possibility of manipulation in
the chance fingerprints contained in MO20, after the arrest of
the appellant. We take this view, as it is obligatory for the
prosecution to maintain the chain of custody as also the purity
of the samples during investigation. In other words, right from
the time of taking the sample, to the time its role in the
investigation and the process subsequent thereto, is complete,
each person handling the said piece of evidence must duly
acknowledge in the documentation to ensure that the integrity
of the sample is uncompromised [See Prakash Nishad v. State
of Maharashtra, 2023 SCC OnLine SC 666].
28. As noted, Ext.P34 report of the Forensic
Science Laboratory reveals that MO7 chopper stated to have
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
been recovered based on the information furnished by the
appellant contained blood, although its origin could not be
traced. Likewise, it is revealed from the said report that MO8
pants recovered based on the information furnished by the
appellant contained human semen, although its origin could
not be detected. Likewise, it is revealed from the said report
that the fibre of cloth collected from the door of the house of
the victims were similar to the fibre of MO8 pants. The
argument advanced by the learned Senior Counsel for the
appellant as regards the report that MO7 chopper contained
blood, is that since the origin of the blood contained in MO7
chopper could not be detected, the same cannot be used as a
conclusive circumstance against the appellant for, the
possibility of the said weapon not being used for the
commission of the crime, cannot be ruled out. We are in
concurrence with this argument. Of course, had this been a
case where the blood of the victims or at least, blood of the
same group of the victims, was found on that weapon, the
position would have been different. In the absence of at least
human blood in the weapon, what could be inferred at the
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
most is only that a weapon with which the injuries suffered by
the victims could be caused, has been recovered based on
informations furnished by the appellant. The said possibility,
according to us, cannot be accepted as a circumstance against
the appellant.
29. As regards the report that human semen was
found in MO8 pants, the argument advanced by the learned
Senior Counsel for the appellant is that the appellant being a
married man, the presence of semen in MO8 pants cannot be
taken as a conclusive circumstance against him in a case of
this nature. We are in agreement with this argument of the
learned counsel for the appellant. We take this view for two
reasons namely, that MO8 was a cloth recovered from the
house of the appellant and that the origin of semen was not
detected.
30. As regards the report that the fibre of MO8
pants and the fibre found on the door of the house of the
victims are similar, the argument advanced by the learned
Senior Counsel is that since clothes are articles produced in
bulk, the similarity of the fibre cannot be regarded as an
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2025:KER:1013
incriminating circumstance, as similar fibres are found in many
garments. The learned Senior Counsel placed reliance on a
recent judgment of this Court in Crl.Appeal No.485 of 2019, in
support of the said argument. We find force in this argument.
The issue involved in Crl.Appeal No.485 of 2019 was as to
whether the report of the Forensic Science Laboratory that
fibres collected from the body of the deceased which were
found to be similar to the fibres of the shawl said to have been
recovered from the house of the accused, could be accepted as
a conclusive circumstance in a case on circumstantial
evidence. Paragraphs 37 and 38 of the judgment in the said
case read thus:
"37. Then there is the evidence of PW26, the Assistant
Director (Biology), who had issued Ex.P28 report with regard to
the samples of fibers collected in the cellophane Fingerprints of
the palms and neck lifted by the investigating officer. Ext.P18
would reveal that the cellophane fingerprints of the right hand of
the deceased (Item No.2), cellophane fingerprints of the left
palm (Item No.4(a)) and cellophane fingerprints of the right palm
(Item No. 4 (b)) contained fibers (scanty), which were similar to
those in item No.1, the fibres of the shawl siad to have been
recovered from the house of the accused.
38. Fibers, especially those from textiles like shawls, are
composed of synthetic or natural materials, which can be mass-
produced. This means that "similar" fibers are found in countless
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2025:KER:1013
garments. The term "similar" indicates that the fibers share
characteristics but doesn't confirm an exclusive match. There is
a a whole lot of difference between "similar" (broad range) and
"identical" (conclusive match) while analyzing fiber samples. As
per Criminalistics, An Introduction to Forensic Science, Edition
13, published by Pearson, fiber analysis is often categorized
under "class evidence," which lacks the individualization
capability of "unique" evidence like fingerprints or DNA.
Therefore, when the report says the fibers are "similar," it only
means that they share general features but do not pinpoint the
source of a single item or person. (See also B.R.Sharma Forensic
Science in Criminal Investigation & Trials, 6th Edition)
Microscopic comparisons of fibers look at aspects such as
diameter, colour, shape, and dye composition. However, even
two fibers from the same manufacturer can appear "similar"
without being "identical." The fiber's general appearance, under
a microscope, could match many fibers produced in the same
batch or even by other manufacturers. Many commercial fibers
are polymer-based, with mass-production techniques that yield
similar fibers across various products. If the fibers were only
deemed "similar," it implies that these could have originated
from other items in circulation. This Court has held that fiber
evidence indicating mere "similarity" without additional
corroborating evidence did not suffice to prove the accused's
guilt beyond a reasonable doubt. As the fibers are not
conclusively identical, their presence does not prove that the
shawl allegedly seized from the house of the accused was used
in the crime. Reference can be made to Biju Kumar v. State of
Kerala12 , and Muhammed Yousaf @ Sajid v. State of Kerala13 .
In Sajid (supra), though what was tested was hair and the report
stated that it was similar rather than identical, this Court had
held that it is not safe to rely on FSL report relating to the
matching of the hair samples when the result only shows that
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2025:KER:1013
the hairs were 'similar' in nature. It was observed that there is a
substantial difference between the words 'identical' and 'similar',
and therefore the report only speaking about similarity cannot
be relied on."
In the circumstances, it is not safe to accept the report of the
Forensic Science Laboratory as regards the similarity of the
fibre in MO8 pants and the fibre found on the door of the house
of the victims.
31. One of the arguments seriously pressed into
service by the learned Special Public Prosecutor is that
inasmuch as the first accused has been found guilty of the
charges in an earlier trial and since that judgment has become
final, it is not necessary for the prosecution to establish all the
facts that are required to prove the charges against the
appellant and it is suffice to prove that the appellant was
present along with the first accused at the scene at the time of
occurrence and that they shared the common intention to
commit rape and murder of the victims. According to the
learned Special Public Prosecutor, on the facts of this case, if it
is established that the appellant was present at the scene
along with the first accused, the common intention to commit
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
the crime could be straight away inferred and that the thumb
impression found in MO20 establishes the presence of the
appellant at the scene at the time of occurrence. In other
words, the argument advanced by the learned Special Public
Prosecutor is that if the evidence tendered by PW15, the
fingerprint expert, is accepted, the appellant can be convicted
on that sole basis. We find this argument fallacious. In the light
of Section 43 of the Indian Evidence Act, the judgment
rendered by the court in the previous trial would be relevant
only if the existence of such a judgment is a fact in issue in the
present case or when the same is relevant under some other
provisions of the Evidence Act. The Special Public Prosecutor
has no case that the existence of the previous judgment is a
fact in issue or a relevant fact in terms of the provisions of the
Evidence Act. The Indian Evidence of Act does not make the
finding of fact arrived at on the evidence before the court in
one case evidence of that fact in another case [See Gopika
Raman Roy v. Atal Singh, 1928 SCC OnLine PC 4].
32. In the light of the discussion aforesaid, the
circumstances that are established in the case on hand are the
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2025:KER:1013
following:
(i) that the death of the victims occurred after the
daughter victim returned to her house after selling pepper on
the evening of 02.12.2007 and before 5.30 p.m. on 03.12.2007,
when PW5 saw her infant left unattended in the courtyard of the
house of the victims.
(ii) that PW9 saw the accused together in the afternoon of
02.12.2007 in his shop which is situated in the locality of the
house of the victims.
(iii) that PW6 saw the accused near the shop of PW9 at
about 8.45 p.m. on 03.12.2007.
At this stage, it is necessary to refer to the charges framed
against the appellant to ascertain the facts which are required
to be approved by the prosecution, to establish the guilt of the
accused. The charges are :
"Firstly, that you Jomon along with other accused
Rajendran, at 10 p.m. on 2-12-2007 committed house trespass,
by entering into the house of xxx and xxx with intention to rape
and murder them and thereby committed an offence punishable
u/s 449 IPC and within my cognizance.
Secondly, you along with other accused Rajendran, on the
date and time as stated above, trespassed into the house of xxx
and xxx at night and committed rape on them and thereby
committed an offence punishable u/s 376 IPC and within my
cognizance.
Thirdly, you along with other accused Rajendran, on the
date and time as stated above, voluntarily caused hurt to xxx
and xxx with chopper and iron rod and intentionally caused their
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
death and thereby committed an offence punishable u/s 302 IPC
and within my cognizance.
Lastly, you acted in furtherance of your common intention
with the other accused Rajendran trespass into the house,
committed rape and murder of xxx and xxx and thereby
committed an offences punishable u/ss. 449, 376, 302 r/w 34 IPC
and within my cognizance."
There cannot be any doubt that the circumstances established
as mentioned above do not satisfy the requirements of law as
enumerated in paragraph 19 to hold that the appellant is guilty
of the charges for, the same do not form a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and will
not show that in all human probability, the act must have been
done by the accused.
33. A close reading of the impugned judgment
would indicate that the aforesaid circumstances together with
the circumstances which have been rejected by us namely
(i) that MO7 chopper recovered based on the information
furnished by the appellant with which some of the injuries
sustained by the victims could be caused, contained blood, (ii)
that one of the chance fingerprints collected from the premises
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
of the house of the victims matched with the interdigital
impression of the right palm of the appellant and (iii) that the
fibre of MO8 pants recovered based on the information
furnished by the appellant matched with the fibre collected
from the door of the house of the victims, the Court of Session
came to the conclusion that the prosecution has established
the guilt of the accused beyond reasonable doubt. Having
regard to the specific charges framed against the appellant, we
are of the view that even if the herein above circumstances are
also accepted as circumstances against the appellant, the
requirement of law as regards the proof of facts in a case on
circumstantial evidence, will not be satisfied in this case for, it
cannot be said that the circumstances together are consistent
only with the hypothesis of the guilt of the appellant namely
that they are not explainable on any other hypothesis except
that the accused is guilty. The impugned judgment, in the
circumstances, is liable to be set aside and we do so.
In the result, the criminal appeal is allowed, the
impugned judgment is set aside and the appellant is acquitted.
He shall be set at liberty forthwith from the concerned prison, if
D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019
2025:KER:1013
his continued detention is not required in connection with any
other case. Registry shall communicate this judgment forthwith
to the concerned prison, where the appellant is undergoing
incarceration. The Death Sentence Reference is answered in
the negative.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
YKB/Mn/Ds
